999 F.

2d 615

UNITED STATES of America, Appellee,

v.
Nicholas CASTANO & Theresa Rodriguez, DefendantsAppellants,
Jorge Castro & Diana Gonzales, Defendants.
Nos. 1816, 1817, Dockets 93-1055, 93-1131.

United States Court of Appeals,

Second Circuit.
Argued July 13, 1993.
Decided July 15, 1993.

David Cooper, New York City, for defendant-appellant Castano.

Jerry L. Tritz, New York City, for defendant-appellant Rodriguez.
Mark O. Wasserman, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Zachary
W. Carter, U.S. Atty., Susan Corkery, Asst. U.S. Atty., of counsel), for
appellee.
Before: MAHONEY, McLAUGHLIN and JACOBS, Circuit Judges.
PER CURIAM:

Defendants-appellants Nicholas Castano and Theresa Rodriguez appeal from

judgments of conviction entered February 4, 1993 and January 20, 1993,
respectively, in the United States District Court for the Eastern District of New
York, Sterling Johnson, Jr., Judge, following their convictions at a jury trial of
conspiracy to distribute, and to possess with intent to distribute, cocaine in
violation of 21 U.S.C. 846 (1988), and possession of cocaine with intent to
distribute in violation of 21 U.S.C. 841(a)(1) (1988) and 18 U.S.C. 2
(1988). On appeal, Castano contends that the trial court erred (a) in denying
him a two-level reduction for acceptance of responsibility, and (b) in failing to
give him a two-level reduction for playing a minor role in the crimes charged.
Rodriguez contends that she was denied her due process right to a fair trial by
the introduction at trial of two statements referring to dealings in firearms

despite a prior district court ruling that barred the introduction of such
evidence.1 Specifically, a government informant who arranged the pertinent
cocaine transaction with Rodriguez improperly testified on direct examination
that he asked her "if she could bring any weapons with the deal also." Further, a
tape recording that was played by the government during its cross-examination
of another informant (called as a hostile witness by the defense) included a
statement by an unindicted confederate of Rodriguez that "[w]e got a nine M
and M for eight ... [w]ell, let's say nine, you know with the other hundred...."
No curative instruction was sought as to the first statement; one was sought,
and provided, as to the second.
2

Castano contends that because he was truthful, as the government conceded at

sentencing, at his second (but not first) proffer session, he should have been
accorded an adjustment in his base offense level for acceptance of
responsibility. He argues that forcing the government to its burden of proof at
trial does not preclude a finding of acceptance of responsibility.

A reduction for acceptance of responsibility is foreclosed in this case, however,

by the commentary to U.S.S.G. 3E1.1, which states that: "This adjustment is
not intended to apply to a defendant who puts the government to its burden of
proof at trial by denying the essential factual elements of guilt, is convicted,
and only then admits guilt and expresses remorse." U.S.S.G. 3E1.1, comment.
(n. 2). There will only be "rare" exceptions to this rule, such as "where a
defendant goes to trial to assert and preserve issues that do not relate to factual
guilt (e.g., to make a constitutional challenge to a statute or a challenge to the
applicability of a statute to his conduct)." Id. Nothing in the record indicates
that Castano had any purpose in going to trial other than to deny his factual
guilt.

The cases cited by Castano to support his position are inapposite. While both
United States v. Charria, 919 F.2d 842, 849 (2d Cir.1990), cert. denied, --- U.S.
----, 112 S.Ct. 62, 116 L.Ed.2d 38 (1991), and United States v. Moskowitz, 883
F.2d 1142, 1155 (2d Cir.1989), assert without qualification that putting the
government to its proof at trial does not preclude a finding of acceptance of
responsibility at the time of sentencing, and other cases in this circuit have
expressed this view, see, e.g., United States v. Bonds, 933 F.2d 152, 156 (2d
Cir.1991) (per curiam) (citing Moskowitz, 883 F.2d at 1155); United States v.
Tillem, 906 F.2d 814, 828 (2d Cir.1990), all these cases apparently were
premised upon earlier and more lenient Guidelines commentary. See
U.S.S.G.App. C, amendment no. 351.2 We are obligated, however, to follow
the current version of that commentary.

As the Supreme Court recently stated in Stinson v. United States, --- U.S. ----,
113 S.Ct. 1913, 123 L.Ed.2d 598 (1993):

6
[Guidelines]
commentary is akin to an agency's interpretation of its own legislative
rules. As we have often stated, provided an agency's interpretation of its own
regulations does not violate the Constitution or a federal statute, it must be given
"controlling weight unless it is plainly erroneous or inconsistent with the regulation."
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89
L.Ed. 1700 (1945).
7

....

... Amended commentary is binding on the federal courts even though it is not
reviewed by Congress, and prior judicial constructions of a particular guideline
cannot prevent the Commission from adopting a conflicting interpretation that
satisfies the standard we set forth today.

Id. --- U.S. at ----, 113 S.Ct. at 1919. We accordingly conclude, in reliance upon
the current commentary, that Castano was not entitled to an adjustment in his
base offense level for acceptance of responsibility.

10

Castano also argues that he should have been accorded a two-level reduction in
his base offense level because he was a minor participant in the conspiracy.
Whether a defendant played a minor role in a crime is a factual question
reviewed on appeal for clear error. United States v. Garcia, 920 F.2d 153, 156
(2d Cir.1990) (per curiam). The defendant bears the burden of proving, by a
preponderance of the evidence, that his participation was minor. United States
v. Lopez, 937 F.2d 716, 726 (2d Cir.1991); Garcia, 920 F.2d at 156. Castano
contends that the government's own evidence establishes that his involvement
was limited to acting as a "lookout." However, the evidence in the record
indicates that Castano's participation was more substantial. Gonzalez, a
codefendant and confederate of Rodriguez, sought out Castano to ascertain the
progress and status of the transaction. Castano and Castro, who drove the
cocaine to the site of the sale, together brought the cocaine into the building
where the transaction was to be consummated. Castano was apparently the only
one of the suppliers in possession of a firearm. The district court's conclusion
that Castano was not a minor participant was not clearly erroneous.

11

We next address Rodriguez' challenge to her conviction premised upon the

erroneous admission of two items of evidence regarding weapons. Trial errors
do not merit reversal unless they affect the substantial rights of the defendant.

United States v. Colombo, 909 F.2d 711, 713 (2d Cir.1990); Fed.R.Crim.P.
52(a). An error is considered harmless when " 'it is "highly probable" that the
error did not contribute to the verdict.' " Colombo, 909 F.2d at 713 (quoting
United States v. Corey, 566 F.2d 429, 432 (2d Cir.1977)).
12

It is extremely unlikely that the erroneously admitted evidence contributed to

the guilty verdict in this case. The introduction of the evidence was inadvertent;
further, the prosecution did nothing to emphasize the statements at the time
they were made, and never referred to them thereafter. Neither statement was
particularly damaging. The first reference was ambiguous. It does not explicitly
refer to trafficking in firearms, and could have meant simply that Rodriguez
should bring firearms to the transaction for protection. The statement was
sufficiently brief and innocuous that it escaped the court's attention ("I don't
recall it. I think I would have reacted.").

13

The second reference to weapons was cryptic. Moreover, the district court
ordered that portion of the tape recording stricken, and ordered the jury to
disregard it. As the Supreme Court has counselled:

14

We normally presume that a jury will follow an instruction to disregard

inadmissible evidence inadvertently presented to it, unless there is an
"overwhelming probability" that the jury will be unable to follow the court's
instructions, Richardson v. Marsh, 481 U.S. 200, 208 [107 S.Ct. 1702, 1707-08,
95 L.Ed.2d 176] (1987), and a strong likelihood that the effect of the evidence
would be "devastating" to the defendant, Bruton v. United States, 391 U.S. 123,
136 [88 S.Ct. 1620, 1628, 20 L.Ed.2d 476] (1968).

15

Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 3109 n. 8, 97 L.Ed.2d
618 (1987). The second statement was not so damaging as to warrant a
departure from this presumption.

16

The strength of the prosecution's case is probably the single most critical factor
in determining whether error was harmless. 3A Charles A. Wright, Federal
Practice and Procedure 854, at 305 (2d ed. 1982). The government's case
against Rodriguez was overwhelming. Rodriguez participated in several taperecorded conversations in which she arranged the sale of two kilograms of
cocaine. She was to be paid for her participation in the transaction, and it was
scheduled to take place at her apartment. When one supplier raised his price,
she arranged for an alternate supplier. Rodriguez' sole defense, entrapment, was
undermined by evidence that she had previously participated in unrelated
cocaine sales.

17

We accordingly conclude that the introduction of these statements was harmless

error. Cf. United States v. Minicone, 960 F.2d 1099, 1109 (2d Cir.) (three
inadvertent references to uncharged crimes constituted harmless error when
court struck them from record and instructed jury to disregard them), cert.
denied, --- U.S. ----, 112 S.Ct. 1511, 117 L.Ed.2d 648, --- U.S. ----, 113 S.Ct.
199, 121 L.Ed.2d 142 (1992); United States v. Anzalone, 626 F.2d 239, 245 (2d
Cir.1980) (reference to defendant's prior incarceration deemed harmless error).

Conclusion
18

The judgments of conviction are affirmed.

This ruling was made in tandem with a denial of a motion by Rodriguez for the
joinder of the charges in this case with those in a separate indictment charging
her and a different group of codefendants with a plot to sell firearms

Moskowitz and Tillem both preceded the effective date of amendment no. 351,
which was November 1, 1990. Charria and Bonds were decided shortly
thereafter, but addressed this issue in passing and made no reference to the
amended commentary. All four cases upheld the denial of an adjustment to the
base offense level for acceptance of responsibility